Pennsylvania Environmental Law Handbook (State Environmental Law Handbook Series)

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The Waterkeeper idea caught on — programs were started in San Francisco, Atlanta and Portland, Maine at about the same time. And in , the fledgling Waterkeepers formed an alliance to spread the Waterkeeper model and support the growing network of Waterkeeper organizations.

United States environmental law

As Waterkeeper Alliance celebrates its twentieth anniversary , it is worth reflecting on how the movement has both shaped, and been shaped by, U. In a way, the Waterkeeper movement was a natural outgrowth of mid th century developments in the law of judicial standing and the Congressional innovation of the environmental citizen suit. Standing for private law enforcement was a potential hurdle, and the Storm King case on the Hudson River proved pivotal to opening up environmental enforcement standing to non-governmental plaintiffs.

Bob Boyle wrote a Sports Illustrated article about the proposed Storm King pumped storage hydroelectric facility and the devastating impact it would have on the Hudson River striped bass fishery.

Environmental Law Practice Guide: State and Federal Law

This story led to the Scenic Hudson Preservation Conference v. Federal Power Commission case in which the Second Circuit Court of Appeals explicitly recognized judicial standing based on non-economic recreational, environmental, and aesthetic harms. The Supreme Court went on to adopt the Scenic Hudson standard for environmental standing in Sierra Club v Morton, but with an important limitation: organizational plaintiffs would have to show that some individual member of the organization personally suffered one of these environmental, recreational, or aesthetic injuries.

This holding set the stage for the growth of waterbody-based grass roots membership organizations litigating to protect their waters from pollution — exactly what became the Waterkeeper model. And in the Federal Water Pollution Control Act Amendments Congress gave such groups something to enforce and the means to enforce it, with strict permitting requirements for point source discharges, numeric permit limits, monitoring requirements, and, most importantly, specific authorization for citizen suits.

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Congress thus gave life to Waterkeepers as enforcers. In , John Cronin became the Hudson Riverkeeper and started patrolling the river looking for cases to bring as a private attorney general.

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While many of the early Clean Water Act citizen suits of the s were brought by Natural Resources Defense Council, as the Riverkeepers, Baykeepers, and Soundkeepers popped up across the country, their influence on the development of US environmental law grew. The grass-roots membership model based on recreational use of rivers, lakes, sounds, and bays was a natural fit with environmental standing requirements.

Not surprisingly, given their roots in the Storm King power plant fight, Waterkeepers have played an important role in ensuring regulation of power generation water intakes. Waterkeepers continue to play the role of regulatory watchdog over the power industry.

This year, Waterkeeper Alliance won a case requiring reconsideration of the coal ash impoundment effluent limits under the Clean Water Act as well as another case requiring reconsideration of the Resource Conservation and Recovery Act regulations governing disposal of power plant coal combustion residuals. Waterkeepers played a key role in development of Clean Water Act regulations in other areas as well. Another one of the founding Waterkeepers, the Upper Chattahoochee Riverkeeper, helped bring combined sewer overflows to the regulatory agenda with a successful suit against the City of Atlanta for violating water quality standards.

Long Island Soundkeeper brought the cases establishing that recreational trap and skeet shooting ranges required Clean Water Act permits for their discharges, and were responsible for cleaning up past lead shot and target contamination in water bodies.


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The Waterkeeper movement has grown to over three hundred forty organizations in forty-seven countries, and Waterkeeper affiliates around the world are influencing the global development of environmental law just as the earliest Waterkeepers did in the United States. Tags: Waterkeeper Alliance , Riverkeeper , environmental standing , private attorney general. Permits, of course, can be challenged. By petition to the EPA Administrator, the Sierra Club challenged a Utah permit in part based on a challenge to the standard used when the permit was issued in !

The challenge was denied. The D. Circuit has exclusive venue for nationally applicable regulations or orders or issues of nationwide scope. So, Sierra Club appealed to the D. Circuit but also filed a protective appeal in the Tenth Circuit in case the D. Good move.

Steven Miano | Rutgers Law

If the Administrator had used other language intimating general application of a standard without a specific finding of a matter of nationwide effect, one has to wonder whether that would produce the same result. So a word to the careful practitioner. Clean Air Act Litigation.

On July 2, , the D. EPA D. July 2, No. After challenges to the rule by both environmental and industry groups, EPA replaced the original Transfer-Based Exclusion with a new rule known as the Verified Recycler exclusion. This new rule was also challenged and was vacated in when the appellate court reinstated the original rule with requirements added in to cover emergency preparedness and containment.

American Petroleum Institute v.

EPA, F. On rehearing, the court expanded the exclusion to cover spent refinery catalysts. EPA, F 3rd D. Circuit Court of Appeals. The court noted that EPA had considered the payment to reclaimers issue and studied the market forces, and had determined there were various reasons for payments to recyclers, including lack of competition in recycling markets, cost savings compared to compliance with Subtitle C requirements, and the need for capital costs to develop and implement the necessary recycling infrastructure and market.

The court noted that recycling management and controls had improved over time due to enforcement and to generator audits of reclaimer performance and financial viability. This thoughtful and practical opinion seems to provide EPA with a tutorial on promulgating a defensible regulation, and perhaps even a final answer on a long debated rule! This author would like to see EPA use the opinion as a template to try again with other important, but now vacated rules. How about a new comparable fuels rule? Hazardous Waste Solid Waste. As our esteemed colleague John Cruden is fond of saying, administrative law is a subset of environmental law.

My vote for the most important Supreme Court environmental law decision in 35 years goes to the administrative law case involving not environmental rules but the interpretation of a Department of Veterans Affairs rule handed down on June 26, Kisor v. I believe Kisor will prove to be the watershed case that that marks a consensus on shifting core principles of administrative law for decades to come.

EPA , being a notable milestone, and probably also the thinking behind his final vote, on the extraordinary Clean Power Plan stay.

What are the odds that Auer v. Kisor goes a long way toward fulfilling Justice Kennedy's recommendation in his final opinion Pereira v. Sessions to reconsider "the premises that underlie Chevron and how courts have implemented that decision. The four separate opinions in Kisor distinguish judicial review of agency interpretations of their own rules Auer deference from agency interpretations of statutes Chevron deference , but there are some inevitable parallels. Kisor establishes a three-step analysis for agency interpretations of its own rules: 1 is the rule genuinely ambiguous?

The text, structure, history and so forth at least establish the outer bounds of permissible interpretation. It is significant that Kisor is authored by Justice Kagan, and joined by Justices Ginsburg, Breyer noted for his command of administrative law , and Sotomayor, and joined in part by Chief Justice Roberts. This is not a majority that can be characterized as anti-administrative state or as sponsors of a partisan Republican or conservative agenda. The boundaries on administrative powers and discretion are placed by Kisor in the hands of the judiciary, with paramount responsibility to judge conscientiously based on a searching and independent inquiry into the relevant legal and factual circumstances involved, and not based on some dogmatic, oversimplified, or wooden formula.

Deference cabined by a diligent judiciary is better than deference too readily or haphazardly granted or denied. Justice Kagan's detailed instructions "we mean it" she wrote to judges handling administrative interpretation cases may well do more good for the opponents of Auer deference than an outright overruling of Auer. If the Auer precedent had been overruled, instead of being "restated" and "somewhat expanded on," there would be more uncertainty and inconsistency, over a longer period of time, about exactly what replaces Auer deference.

The implicit call to legislators and administrators to pay better attention to the text and clarity of the laws they write is constructive too. Good work Justice Kagan. Administrative Regulation Supreme Court. In her long battle with cancer, Martha demonstrated great character, courage and grace, never losing her sunny and defiant outlook. Those of us who knew her well were not surprised by how she fought that battle, but it was humbling and inspiring to witness. She was a great strategist, whether representing small family farms or large public utilities, and enjoyed the respect and friendship of decision makers—agencies, legislators and governors.

For example, she served as an arbitrator appointed by the States of Kansas, Nebraska and Colorado to resolve a dispute pursuant to the decree entered by the U. Supreme Court in an original jurisdiction case, Kansas v.